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Taulli v. EverBank

United States District Court, D. Nevada

November 6, 2017

RICHARD A. TUALLI, Plaintiff(s),
EVERBANK, et al., Defendant(s).


         Presently before the court is defendant EverBank's[1] motion to dismiss plaintiff Richard Taulli's complaint under Federal Rule of Civil Procedure 12(b)(6), (ECF No. 6). The motion to dismiss is granted.

         I. Facts

         The court accepts the following allegations in Taulli's complaint as true, to the extent that they are non-speculative and plausible, for the purposes of resolving the pending motion to dismiss, see generally Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         This case involves a foreclosure sale on Taulli's home caused by his admitted delinquency in making his mortgage payments. (See ECF No. 1-2 at 6 ¶ 15) (Taulli admitting in his complaint, "[Taulli] being unable to make his required payment. . ."). The real property in question is located at 2808 Cowan Circle, Las Vegas, Nevada, 89107, also known as APN 139-32-214-017. Taulli claims that the subject home is his principal place of residence, which he purchased with a note in the principal amount of $897, 600. (Id. at 5).

         However, he alleges that over the years of his mortgage payments, the defendants had improperly serviced his loan and applied his payments toward only the loan's interest, rather than applying any amount toward the principal, yet the defendants had misled him by leading him to believe that part of his payments went towards his principal. (Id. at 6 ¶¶ 17-18, 7 ¶ 29(b)). He also alleges that before initiating foreclosure proceedings, defendants failed to act in good faith in servicing his loan by failing to comply with the federal Real Estate Settlement Procedures Act, 12 U.S.C. § 2605(e) ("RESPA"), and the regulations promulgated thereunder, and by "failing to allow mediation or modification in good faith, as required under Nevada and Federal law." (Id. at 7-8).

         On or about April 19, 2017, Taulli sent defendant EverBank a "qualified written request" pursuant to RESPA requesting information about his loan. (Id.). On May 25, 2017, EverBank sent a letter to Taulli requesting more time to respond. (Id.). On the same day, Taulli received a notice of sale from defendant Trustee Corp, setting the foreclosure sale for June 27, 2017. (Id. at 7¶22).

         Taulli claims that, as of the date of the complaint, EverBank has yet to provide Taulli with the information he requested by the qualified written request. (Id. at 7). Even if EverBank provided Taulli that information now, Taulli claims there would be insufficient time to "utilize the information for any mediation or modification" before the foreclosure. (Id.).

         On June 15, 2017, plaintiff Richard Taulli filed a complaint in Nevada state court against defendants EverBank, Countrywide Mortgage, Oaktree Funding, and Trustee Corps, bringing claims relating to the defendants' allegedly improper servicing and foreclosure on plaintiff s home mortgage. (ECF No. 1-2 at 4-11).

         On July 14, 2017, defendant EverBank filed the instant motion to dismiss. (ECF No. 6). Taulli responded. (ECF No. 11). EverBank replied. (ECF No. 13).

         On August 14, 2017, Taulli filed an emergency motion for a temporary restraining order. (ECF No. 12). On August 22, 2017, this court denied that motion because Taulli did not supply this court with a verified complaint or sworn affidavit demonstrating specific facts that show the need for a TRO. (ECF No. 14). In essence, Taulli made bare allegations without supporting evidence, which is especially troublesome when asking the court to order ex parte relief.

         As of the parties' last indication, the foreclosure of the property at issue in this litigation was set for August 24, 2017. (ECF No. 14 at 1).

         The court now addresses EverBank's motion to dismiss Taulli's complaint.

         II. Legal Standard

         A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A properly pled complaint must provide "[a] short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

         "Factual allegations must be enough to rise above the speculative level." Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (citation omitted).

         In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 678-79. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 678.

         Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiffs complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 678.

         Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has "alleged-but not shown-that the pleader is entitled to relief." Id. (internal quotation marks omitted). When the allegations in a complaint have not crossed the line from conceivable to plausible, plaintiffs claim must be dismissed. Twombly, 550 U.S. at 570.

         The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The Starr court stated, in relevant part:

First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.


         Finally, in resolving a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court cannot consider evidence or matters outside of the pleadings or else "the motion must be treated as one for summary judgment." Fed.R.Civ.P. 12(d). However, certain written instruments may be considered to be part of the pleading; even if a document is not attached to the complaint, it may be incorporated by reference into the complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiffs claims. United States v. Ritchie, 342 F.3d 903, 908 (2003). In that situation, a court may treat such a document as "part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6)." Id.

         Therefore, in resolving the present motion to dismiss, (ECF No. 6), this court will exclude from its consideration all matters outside the pleadings (see, e.g., ECF No. 12; ECF No. 1-2 at 16-26), but this court will consider the deed of trust and its attachments found in exhibit 1 to the motion to dismiss (ECF No. 6 at 8-29), and the notice of delinquency and intent to sell found in exhibit 2 to the motion to dismiss (ECF No. 6 at 30-36), upon each of which Taulli's complaint relies and implicitly incorporates.

         III. Discussion

         Taulli alleges four claims against defendants: (1) contractual breach of the implied covenant of good faith and fair dealing, (2) tortious breach of the implied covenant of good faith and fair dealing, (3) declaratory judgment, and (4) injunctive relief. (ECF No. 1-2 at 7-11).

         However, as a preliminary matter, a claim for declaratory relief pursuant to the federal Declaratory Judgment Act, 28 U.S.C. § 2201, is merely a remedy and not an independent, substantive cause of action. (ECF No. 6 at 7); see Stock W., Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). The same is true for a request for declaratory relief under Nevada's Uniform Declaratory Judgment Act. See Nev. Rev. Stat. § 30.030; Builders Ass'n of N. Nevada v. City of Reno, 776 P.2d 1234, 1234 (Nev. 1989) ("The Uniform Declaratory Judgments Act does not establish a new cause of action . . .").

         Likewise, a request for injunctive relief is also merely a remedy, not an independent cause of action. (ECF No. 6 at 7); see Tyler v. Am. Home Mortgage, No. 3:10-cv-00042, 2011 WL 5025234 at *6 (D. Nev. Oct. 21, 2011) (citing In re Wal-Mart Wage & Hour Emp't Practices Litig., 490 F.Supp.2d 1091, 1130 (D. Nev. 2007)); see also Jensen v. Quality Loan Service Corp.,702 F.Supp.2d 1183, 1201 (E.D. Cal. 2010) ("An injunction is a remedy, not a separate claim or cause of action. A pleading can . .. request injunctive ...

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